Former Supreme Court Clerks Remember Justice Antonin Scalia

Supreme Court Justice Antonin Scalia was known for his sharp wit and a sharper pen. Considered one of the most influential and intellectual justices to ever serve on the court, he was a fierce champion of conservative values.

Scalia interpreted the Constitution by looking at its original intent when drafted. He was the longest-serving member of the current Supreme Court, appointed by President Ronald Reagan in 1986 and unanimously confirmed by the Senate.

But who was the man behind the black robes? We speak with four former Supreme Court clerks who got to know him and his jurisprudence from a most unique perspective.

Joining us to discuss Justice Scalia’s Supreme Court career and legacy are:

David Franklin, who clerked for Justice Ruth Bader Ginsburg from 1999 to 2000 and now teaches Constitutional Process at the DePaul University College of Law.

Carolyn Shapiro, a clerk for Justice Stephen Breyer from 1996 to 1997 who is now the Illinois Solicitor General.

Michael Scodro, who clerked for former Justice Sandra Day O'Connor from 1998 to 1999, once served as Illinois Solicitor General, and is now in private practice.

Andrew DeVooght, who was a clerk for the late Chief Justice William Rehnquist from 2002 to 2003 and is also in private practice after working as a federal prosecutor.

Below, some highlights from our conversation.

David Franklin on Scalia’s dissenting opinions

“He was very quick-witted and he was very certain of himself, confident in his views. And what he managed to do is no mean feat because he took ideas that were out of fashion, off the wall or even unthinkable and by force of his personality, his writing, his thinking, he injected them into the mainstream of American law, and he did it mostly through dissenting opinions because Scalia was not one to trim his sails to win over the votes from his colleagues.”

Andrew DeVooght on why Scalia didn’t write many majority opinions

“A lot of what he’s known for are where he’s in dissent or concurrence, and that was in part because, having clerked for [Chief Justice William Rehnquist] who would assign the opinions in the majority – the person assigning the opinions is thinking about who’s going to keep these five justices together and there may be some trimming … an opinion to make sure that majority holds.”

Carolyn Shapiro on Scalia’s rhetoric

“I think there were actually some real problems with Scalia’s rhetoric. It’s obviously incredibly colorful. People love to read his opinions whether they agree with them or disagree with them. But it did set a tone in terms of how people talk about what the court does and in terms of how people talk about the justices they agree with or disagree with. That I think is really unfortunate. Certainly people disagree and agree all the time, and I think the justices are well able to separate their personal relationships. But the rest of us are also reading these opinions, and for the rest of the country, I think it’s important to at least believe for the most part that the justices we disagree with are acting in good faith.”

Michael Scodro on possible pressure on Justice Kennedy in an eight-Justice court

“In a sense, going 4-4, you could argue, takes the pressure off Justice Kennedy in a certain sense, too. He can be on the conservative side of the divide, for lack of a better word, in a way that is more difficult for him, perhaps in a very controversial, monumental case with a … nine-justice court.”